Dessie Hunt Simmons v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00231-CR ______________________________



DESSIE HUNT SIMMONS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 5th Judicial District Court Cass County, Texas Trial Court No. 2005-F-00059

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Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Dessie Hunt Simmons has appealed from her conviction of possession of a controlled substance (cocaine) in an amount of four grams or more, but less than 200 grams. See Tex. Health & Safety Code Ann. § 481.115(d) (Vernon 2003). Simmons waived a jury trial and entered an open plea of guilty. After a hearing on punishment, the trial court sentenced Simmons to fifteen years' confinement. Simmons was represented by appointed counsel at trial and by different appointed counsel on appeal.

Appellate counsel filed a brief April 17, 2006, under the mandate of Anders v. California, 386 U.S. 738 (1967), and Ex parte Senna, 606 S.W.2d 329, 330 (Tex. Crim. App. 1980), and has accordingly also filed a motion to withdraw. Counsel sent Simmons a copy of the brief and advised Simmons by letter he believes there are no arguable contentions of error. He also informed Simmons of her right to review the record and file a brief pro se. Simmons requested an extension of time to file her brief, which was granted to and including June 16, 2006. No brief has been filed, and Simmons has not sought additional time in which to prepare a brief.

Counsel has filed a brief which discusses the record and reviews the proceedings. Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced, as required by High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). See also Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). Counsel concluded from his review of the record there is no arguable point of error to support the appeal.

Counsel further states in the brief that the plea "was done according to statutory and case law," that all admonitions were properly given, and that Simmons knowingly and voluntarily entered her plea of guilty.

We have, likewise, reviewed the record and agree with counsel there are no arguable points of error in this case.

We affirm the judgment of the trial court.

Jack Carter

Justice

Date Submitted: August 3, 2006

Date Decided: October 13, 2006

Do Not Publish

preserved under Section 263.405(i). See Tex. Fam. Code Ann. § 263.405(i).

We now address the parents' claimed error in "the fundamental unfairness and lack of due process" in allowing the foster parent intervenors, CPS, and the child's attorney ad litem to present "unduly repetitious, cumulative, and identical" evidence. While this error was properly preserved in the statement of points, the parents (1) inadequately briefed the issue on appeal, and (2) did not properly object to any alleged errors at trial.

When the brief contains no authority to support its argument, a point is inadequately briefed. Bowles v. Reed, 913 S.W.2d 652, 661 (Tex. App.--Waco 1995, writ denied). Rule 38.1(h) and its predecessor, former Rule 74(f), have consistently been found to mean that an appellant presents the court of appeals with nothing to review when such appellant fails to cite any authority for the argument or arguments in his or her points of error. Id.; see also Tex. R. App. P. 38.1(h); Hunter v. NCNB Tex. Nat'l Bank, 857 S.W.2d 722, 725 (Tex. App.--Houston [14th Dist.] 1993, writ denied); Malouf v. Dallas Athletic Country Club, 837 S.W.2d 674, 678 (Tex. App.--Dallas 1992, writ dism'd w.o.j.); Essex Crane Rental Corp. v. Striland Constr. Co., 753 S.W.2d 751, 756 (Tex. App.--Dallas 1988, writ denied). Thus, a point of error not adequately supported by either argument or authorities is waived. See Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (discussing "longstanding rule" that point may be waived due to inadequate briefing); Ralston Purina Co. v. McKendrick, 850 S.W.2d 629, 637 (Tex. App.--San Antonio 1993, writ denied).

The parents' brief contains many citations to those parts of the record in which the intervenors' attorney buttressed the State's case in the process of cross-examining one of the State's witnesses. The parents do not, however, point to any authority, and we are aware of none, in support of the parents' broad conclusion that this "unduly repetitious, cumulative, and identical" evidence implicates any "fundamental unfairness and lack of due process." Neither do the parents bring to our attention any authority in support of the proposition that the court committed any error, let alone constitutional error. Cf. Russell v. Dunn Equip., Inc., 712 S.W.2d 542, 545-46 (Tex. App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.) (allowing multiple parties right to question a single witness is within the court's discretion since, otherwise, nonquestioning party's "right to be represented by counsel of his choice would be effectively destroyed").

Moreover, the parents' record references do not indicate that the parents objected to any of these alleged errors during the trial. Indeed, the only objection the parents present for our review is a nonobjection recorded at the start of the second day of trial: the record indicates the parents complained of the repetitious questioning; the trial court noted that it was unsure such questioning was objectionable and that, in any case, it had heard no prior objection; and the parents' counsel indicated he would object to the questionable tactic in the future "[i]f it arises." The record portions the parents reference on appeal do not include any objections, we are unaware of any additional subsequent objections, and we decline to comb the seven-volume reporter's record of this week-long trial to find one. When the appellant does not provide us with argument that is sufficient to make an appellate complaint viable, we will not perform an independent review of the record and applicable law in order to determine whether the error complained of occurred. Ferguson v. DRG/Colony N., Ltd., 764 S.W.2d 874, 887 (Tex. App.--Austin 1989, writ denied); Most Worshipful Prince Hall Grand Lodge v. Jackson, 732 S.W.2d 407, 412 (Tex. App.--Dallas 1987, writ ref'd n.r.e.). We will not do the job of the advocate. See Jackson, 732 S.W.2d at 412; Maranatha Temple, Inc. v. Enter. Prods. Co., 893 S.W.2d 92, 106 (Tex. App.--Houston [1st Dist.] 1994, writ denied). For failure to preserve the issue for appeal, and for inadequately briefing the issue on the law and facts, we overrule the claimed error.

No/Insufficient Evidence Complaint

The parents' second issue presented is: "There is no evidence, or insufficient evidence, to support the jury's affirmative findings that: 1. the parent-child relationship between Rachel . . . and [N.L.G.] be terminated; 2. the parent-child relationship between Thomas . . . and [N.L.G.] be terminated." This corresponds with the parents' first claimed appellate point in their statement of points given to the trial court: "There is insufficient evidence in the record of this case to support the jury's finding in the affirmative as to termination of the parent/child relationship existing between Respondents and the minor child." Both the State and the intervenors assert on appeal that the parents' statement of this point is insufficiently specific under Section 263.405(i) to allow us to consider it. See Tex. Fam. Code Ann. § 263.405(i).

The Legislature amended Section 263.405 last year to include subsection (i). Act of April 20, 2005, 79th Leg., R.S., ch. 176, § 1, 2005 Tex. Gen. Laws 332. In addition to prohibiting courts of appeals' consideration of issues not "specifically presented" in the statement of points, section (i) states that "[f]or purposes of this subsection, a claim that a judicial decision is contrary to the evidence or that the evidence is factually or legally insufficient is not sufficiently specific to preserve an issue for appeal." Tex. Fam. Code Ann. § 263.405(i). The plain language of the statute indicates the Legislature intended to bar our consideration of global, nonspecific claims of evidentiary insufficiency in a statement of points. Accord In re A.C.A., No. 13-05-610-CV, 2006 Tex. App. LEXIS 3759 (Tex. App.--Corpus Christi May 4, 2006, no pet.) (mem. op.) (a statement that "evidence was factually and legally insufficient to support the judgment" in motion for new trial "is insufficient to preserve the issue for appeal" under Section 263.405(i)). But cf. In re A.J.H., No. 02-06-083-CV, 2006 Tex. App. LEXIS 8430, at *1 (Tex. App.--Fort Worth Sept. 28, 2006, no pet.) (finding statement of points sufficiently specific when evidentiary sufficiency point references specific paragraphs of judgment and specific grounds of termination). Because the parents' statement of points did not reference any specific area of evidentiary insufficiency but, instead, generally stated the evidence was insufficient, we are constrained to overrule the parents' second issue for insufficient specificity per Section 263.405(i). ⁽³⁾

Jury Charge Error Complaint

The parents' final issue on appeal is that the court erred in submitting to the jury certain grounds for termination not supported by the evidence.

The Grounds for Termination of Rachel's Parental Rights

The court charged the jury that, for termination of Rachel's parent-child relationship, it must find by clear and convincing evidence either:

1. That Rachel . . . , has knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; ⁽⁴⁾ OR

2. That Rachel . . . , has engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child, ⁽⁵⁾ OR

3. That Rachel . . . , failed to comply with the provisions of a court order that specifically established the actions necessary for the mother to obtain the return of the child who has been in the temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent for abuse or neglect of the child, ⁽⁶⁾ OR  

4. That Rachel . . . , used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or safety of the child, and that, either she:

1. failed to complete a court ordered substance abuse treatment program; or

2. after completion of a court ordered substance abuse treatment program, she continued to abuse a controlled substance. ⁽⁷⁾

Rachel challenges the submission of the fourth ("Subsection P") ground for termination. Rachel asserts that the Subsection P ground was improperly submitted, despite her admitted use of a controlled substance, since the evidence indicated she did complete all ordered treatment and no evidence indicates her continued abuse. While this point of error on appeal tracks the complaint made in the statement of points, it does not track the objection made to the trial court before the submission of the charge to the jury. ⁽⁸⁾

A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.

Tex. R. Civ. P. 274; see also Tex. R. App. P. 33.1(a).

There is only one test for "determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling." State Dep't of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992); De Leon v. Furr's Supermarkets, Inc., 31 S.W.3d 297, 299 (Tex. App.--El Paso 2000, no pet.). The only timely and plain objection to the trial court's inclusion of the Subsection P ground was that "the uncontroverted evidence established that although [Rachel] didn't complete a court-ordered substance abuse program, it was impossible for her to do so because they would not accept her into the program." Rachel has now abandoned this alleged point of error--i.e., that Rachel failed to comply with the court-ordered treatment only because completion of that treatment was an impossibility--in favor of a new point of error. Rachel now claims (in the statement of points and in the brief on appeal) not that she could not comply with treatment the court ordered, but that she did comply, apparently through completion of a different program. Additionally, Rachel now also claims there is no evidence of her continued drug use. Because the claims of error on appeal do not comport with the objection made at trial, and because the trial court was not made aware of the error now claimed, Rachel has waived the issue on appeal. See Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 274; In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003). The point of error is overruled.

The Grounds for Termination of Thomas' Parental Rights

The court charged the jury that, for termination of Thomas' parent-child relationship, it must find by clear and convincing evidence either:

1. Thomas . . . , has knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; ⁽⁹⁾ OR

2. Thomas . . . , has engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child, ⁽¹⁰⁾ OR

3. Thomas . . . , voluntarily, and with knowledge of the pregnancy, abandoned the mother of the child beginning at a time during her pregnancy with the child and continuing through the birth, failed to provide adequate support or medical care for the mother during the period of abandonment before the birth of the child, and remained apart from the child or failed to support the child since the birth, ⁽¹¹⁾ OR

4. Thomas . . . , knowingly engaged in criminal conduct that has resulted in his conviction of an offense and confinement or imprisonment for not less than two years from the date of filing the petition for termination, thereby, resulting in an inability to care for the child. ⁽¹²⁾

Thomas challenges the submission of the third ("Subsection H") and fourth ("Subsection Q") grounds for termination.

Thomas did not claim error in the submission of the Subsection Q ground in his statement of points. Therefore, we may not consider it, and must overrule this point of error. See Tex. Fam. Code Ann. § 263.405(i). While Thomas did raise the alleged error in the submission of the Subsection H grounds in his "statement of points," he did not raise this objection to the trial court before the submission of the charge to the jury. Thomas has, therefore, waived the issue on appeal. See Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 274; B.L.D., 113 S.W.3d at 349. The point of error is overruled.

Conclusion

For the foregoing reasons, we affirm the judgment.

Donald R. Ross

Justice

Date Submitted: October 23, 2006

Date Decided: December 14, 2006

1. To protect the parties' privacy, we refer to the parents separately by their first names, and to the child by the initials. See Tex. Fam. Code Ann. § 109.002(d) (Vernon 2002). We refer to Rachel and Thomas collectively as "the parents."

2. In the record on appeal, the agency is referred to by several different acronyms: CPS, DFS, DFPS, etc. For simplicity, we will use only the acronym "CPS."

3. We note the parents have not raised a constitutional challenge to this section of the Texas Family Code. The legislative history of section (i) indicates it was enacted in response to "recent appellate decisions [that] effectively repealed the Legislature's attempt to address the post-judgment delay issue." House Comm. on Juv. Just. & Fam. Issues, Bill Analysis, Tex. H.B. 409, 79th Leg., R.S. (2005). The history indicates that the amendment was intended to "conclusively establish that the Legislature expects litigants to comply" with the statement of points requirement. Id. From this context, it seems the Legislature probably intended this part of the amendment to prohibit future appellants' and appeals courts' further circumvention of the "Statement of Points" requirement. In other words, it appears the Legislature intended to ensure that courts would not allow a generalized evidentiary sufficiency complaint to encompass all possibly related and/or subsidiary points of error. Nonetheless, the express language of the statute does not limit itself to prohibiting such use of evidentiary sufficiency points to bolster other claims of error not specifically mentioned in the statement of points. It is worded so as to preclude claims of evidentiary sufficiency themselves, if not "specifically presented." See Tex. Fam. Code Ann. § 263.405(i).

We note our concern that the statute, as written, prohibits a general assertion of factual and legal insufficiency of the evidence in a situation like the one presented to us here where (1) the indigent parents were required to file a statement of points before the hearing to obtain a copy of the record and appointment of appellate counsel; (2) the parents' evidentiary insufficiency point of error tracks the broad-form jury verdict that did not itself specify the grounds for termination or separately make a finding of the child's best interest; and (3) the point of error tracks the order of judgment that broadly, globally, and nonspecifically stated that the parent-child relationship is terminated. In these circumstances, which are not too unusual in parental-termination cases, the requirement, at the trial court level, of a more specific statement of how the evidence is legally and factually insufficient does not seem necessary to accomplish the Legislature's goal of allowing the trial court to be made aware of "mistakes that could have been quickly and easily corrected" since the court must review all the evidence on each possible ground for termination presented. House Comm. on Juv. Just. & Fam. Issues, Bill Analysis, Tex. H.B. 409, 79th Leg., R.S. (2005).

4. This tracks Tex. Fam. Code Ann. § 161.001(1)(D) (Vernon Supp. 2006).

5. This tracks Tex. Fam. Code Ann. § 161.001(1)(E) (Vernon Supp. 2006).

6. This tracks Tex. Fam. Code Ann. § 161.001(1)(O) (Vernon Supp. 2006).

7. This tracks Tex. Fam. Code Ann. § 161.001(1)(P) (Vernon Supp. 2006).

8. Though the charge conference was held off the record, the trial court heard objections to the final charge on the record.

9. This tracks Tex. Fam. Code Ann. § 161.001(1)(D).

10. This tracks Tex. Fam. Code Ann. § 161.001(1)(E).

11. This tracks Tex. Fam. Code Ann. § 161.001(1)(H) (Vernon Supp. 2006).

12. This generally tracks Tex. Fam. Code Ann. § 161.001(1)(Q) (Vernon Supp. 2006).